"All you have to do, is to see whether the law takes from some what belongs to them in order to give it to others to whom it does not belong. We must see whether the law performs, for the profit of one citizen and to the detriment of others, an act which that citizen could not perform himself without being guilty of a crime. Repeal such a law without delay. ... [I]f you don't take care, what begins by being an exception tends to become general, to multiply itself, and to develop into a veritable system"…….Frederic Bastiat.

In
December 2015, while delivering his speech at 'Hindustan Times
Leadership Summit,' PM Shri Narendra Modiji
had stressed the idea of FEDERALISM in India. He had expressed his
opinion about the need for the centre and states to work together to
put India on a path of sustained economic growth.

In
Focus

"India is
a huge country and it cannot be ruled from Delhi," Modiji said in
Hindi at the opening of the two-day Summit. "It's only on the
strong pillars of the states that the nation can stand. The states
and Delhi should "try to walk together, shoulder-to-shoulder, in
the same direction, at an even pace. The results will come soon
enough." The concept of cooperative federalism had been a pet theme
of the National Democratic Alliance (NDA) government.

Modiji
said it was important that state governments and the centre work
together to showcase the strength of every state to the world.

Even
the skeptics like Bidyut Chakrabarty, a political science professor
of Delhi University had appreciated the new approach of PM. "All
mature politicians have displayed a centrist approach and pragmatism.
Modi is trying to capture the centrist position in politics, which
was earlier with the Congress. It seems Modi has realized the diverse
nature of India's culture, especially after the Delhi and Bihar
assembly election debacles, and is now becoming a more pragmatic
politician."

Besides PM's strong pledge to make India
Congress-free, Cooperative Federalism was his prominent plank during
his electoral campaign. It was a promise that he would usher in a new
era for Indian federalism.

Any outsider of the milieu of
political theatrics would be informed well that the key element in
fostering cooperative federalism is the respect for the mandate of
elected governments. To boast and browbeat the weak opposition is not
the metal of governance. There are states that are run by opposition
parties. They should be allowed to function without fear of collapse
and implosion under the tremendous weight, power and clout of
centre.

This is a proof if there is genuine desire to flourish
the federal character of the nation. A majority in Parliament, the
coercive tactics, a clandestine power to offer the cushions is one
thing; behaving like the Honest Custodian of Constitution is quite
another. Murder of federal polity is too costly a price the nation
would be ready to pay. History would demand accountability of acts of
willful vibes one day.

What has
happened in hill states since BJP came to power is the very
antithesis of the federal spirit. A government that brooks no
opposition is a most unlikely node for generating federal harmony.

I was not
surprised when over two dozen Bharatiya Janata Party (BJP)
legislators of Uttarakhand arrived to a grand welcome at the Jolly
Grant airport on Monday. The RSS/BJP cadre had massed at the airport
exit to welcome the legislators, showering flowers and raising
slogans. They had returning after having Jolly Good time while they
were been camping in Jaipur, Gurgaon and New Delhi for the last one
week since a political crisis erupted in Uttarakhand.

The State BJP
president, Teerath Singh Rawat said after his arrival that the state
unit was thankful to the President of India for signing the
proclamation of central rule in the hill state."We are very
thankful to Rashtrapatiji that he acted as the true custodian of the
constitution."

Somewhere in the neighborhood, Harish
Rawat, the luckless deposed CM met Governor KK Paul along with
Congress legislators at the Raj Bhawan. He was saying,"We have
come here to show our strength and protest against the decision taken
against our government. We should have been given time to prove its
majority."

As there is no precedent in Constitutional
History of India, to the best of my knowledge,where a elected
government was kicked out on the eve of a floor test authorized by
the Governor himself, I've except one - the "Supreme Court of
India - S.R. Bommai vs Union Of India on 11 March, 1994".

It
said - "The constitutional provisions relating to the issue of the
Proclamation and as I am in agreement with the reasoning given by
B.P. Jeevan Reddy, J., it is not necessary for me to make further
discussion on this matter except saying that I am of the firm opinion
that the power under Article 356 should be used very sparingly and
only when President is fully satisfied that a situation has arisen
where the Government of the State cannot be carried on in accordance
with the provisions of the Constitution. Otherwise, the frequent use
of this power and its exercise are likely to disturb the
constitutional balance. Further if the Proclamation is freely made,
then the Chief Minister of every State who has to discharge his
constitutional functions will be in perpetual fear of the axe of
Proclamation falling on him because he will not be sure whether he
will remain in power or not and consequently he has to stand up every
time from his seat without properly discharging his constitutional
obligations and achieving the desired target in the interest of the
State."

In that episode, the Congress government at the
Centre had dismissed Karnatak CM on April 21, 1989 after a section of
his own party withdrew support to him. Mr. Bommai had taken over as
CM on August 13, 1988 from Ramakrishna Hegde, who had quit following
a telephone-tapping scandal. The governor had sent a report to the
President recommending he exercise power under Article 356(1) stating
therein there were dissensions and defections in the ruling party.
Then, seven out of the 19 legislators who had rebelled, sent letters
to the governor complaining their signatures were obtained on the
earlier letters by misrepresentation and affirmed their support to
the ministry.

The CM had met the governor the same day and
informed him about the decision to summon the assembly to prove the
confidence of assembly in his government. But the governor did not
heed his appeal and sent another report to the President to dismiss
the government. President issued the proclamation, which was approved
by the Parliament as required by Article 356(3).

The aggrieved
minister Bommai moved the Supreme Court challenging his dismissal.

The Judgments
of the Court were delivered by S. Ratnavel Pandian.

This
trend-setting judgment by the Supreme Court stipulating a floor test,
is the sole yardstick for testing a majority in case of a doubt.

The judgment
stated that the proclamation under Article 356(1) is not immune from
judicial review. The Supreme Court or the High Court can strike down
the proclamation if it's found to be mala fide or based on wholly
irrelevant or extraneous grounds. If the court strikes down the
proclamation, it has the power to restore the dismissed
government.

The governor is like a person wearing two hats.
With one, he is the head of the state government and with the other,
he is a representative of the President. He is not a mere agent of
the President.

President's proclamation should be placed in
Parliament within two months and approved.

"In all cases
where the support of the Ministry is claimed to have been withdrawn
by some legislators," Justices Sawant and Kuldip Singh held,
"the proper course for testing the strength of the Ministry is
holding the test on the floor of the House." "The
assessment of the strength of the Ministry is not a matter of private
opinion of any individual be he the Governor or the President"
(emphasis added).

"Whenever a doubt arises whether the Council
of Ministers has lost the confidence of the House, the only way of
testing it is on the floor of the House" (emphasis as in the
original). The sole exception to this will be a situation of
"all-pervasive violence where the Governor comes to the
conclusion - and records the same in his report - that for the
reasons mentioned by him, a free vote is not possible."

These
simple legal mandates were before President Narayanan when he had
first ordered a brief on Bommai as BJP-BSP relations deteriorated in
the State. Prime Minister I.K. Gujral was receptive to the need for a
floor test, but Defence Minister Mulayam Singh Yadav, backed by the
Congress (I), insisted that the BJP Government be dismissed. Although
legally in the wrong, Mulayam Singh was in a political sense entitled
to suggest the course of action he did.

In June 1995,
his Ministry in Uttar Pradesh, deserted by the slippery BSP, became
the first to be dismissed after Bommai was delivered. The Chief
Minister was summoned to the Raj Bhavan at 4 p.m. on June 3 and told
to resign. Despite his explicit protest against the
unconstitutionality of the action since Bommai made a floor test his
right, Governor Motilal Vora asserted that legal opinion stressed his
discretionary powers in such situations. (Frontline, June 30,
1995).

With one eye on coming Assam and other State elections,
the precipitated actions, the dramatic gestures and rhetorical
flourishes of RSS Brigade are becoming shriller day by day. PM Modi seeks to carve his place in history. Hope and pray,
it were not for all wrong reasons.

Editorial NOTE: This article is categorized under
Opinion Section. The views expressed in this article are solely
those of the author and do not necessarily represent the views of
merinews.com. In case you have a opposing view, please click
here to share the same in the comments section.